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CHAPTER VI.: OF THE DIVISION OF OFFENCES. - Jeremy Bentham, The Works of Jeremy Bentham, vol. 3 
The Works of Jeremy Bentham, published under the Superintendence of his Executor, John Bowring (Edinburgh: William Tait, 1838-1843). 11 vols. Vol. 3.
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OF THE DIVISION OF OFFENCES.
Upon the principle of utility, such acts alone ought to be made offences, as may be detrimental to the community.
An act cannot be detrimental to a community but by being detrimental to some one or more of the individuals that compose it. These individuals may either be assignable* or unassignable.
When there is any assignable individual to whom an offence is detrimental, that person may be either the delinquent himself, or some other person.
When there are persons to whom the act in question may be detrimental, but such persons cannot be individually assigned, the circle within which they may be found is either of less extent than the whole state, or not. If of less, the persons comprised within this lesser circle may be considered for this purpose as composing a body of themselves, comprised within, but distinguishable from the greater body of the whole community.
From a consideration of these circumstances, offences may be divided into four classes:—
1. Acts detrimental in the first instance to assignable individuals other than the delinquent himself. These are private offences.
2. Acts detrimental in the first instance to the delinquent and not to others, except in consequence of the evil he has done to himself. These may be called, for the purpose of contrasting them with the other classes, personal offences, or self-regarding offences.
3. Acts which may be detrimental to certain unassignable individuals comprised within a particular circle less than that of the state—as a trading company, a corporation, a religious sect. These offences against a portion of the community may, for the purpose of contrasting them with the other classes, be called semi-public offences.*
4. Acts which may be detrimental, or which threaten a danger more or less remote to an indeterminate number of unassignable individuals, without it being apparent that any one is more exposed than another. These may be called offences against the state, or public offences.
The four classes of offences are—
SUBDIVISION OF OFFENCES.
Subdivision of Private Offences.
In the present period of his existence, the happiness of a man, and his security—in a word, his pleasures, and his immunity from pains—depend, primarily, upon the condition of his person, and secondly, upon the exterior objects which surround him. If, therefore, a man suffer in consequence of an offence, it must be either in an immediate manner in his person, or in a relative manner by reason of his relation with exterior objects. But these exterior objects are things or persons: things, which he employs for his own advantage, in virtue of what is called property; persons, from whom he derives advantages in virtue of services which they are disposed to render to him. This disposition to render those services may be founded simply upon the general connexion which binds all men together, or upon a connexion which unites certain individuals more particularly with others. These more close connexions form a kind of fictitious and incorporeal object of property which is called condition: domestic condition, connexion between a parent and child, a husband and wife; political condition, connexion between the citizens of the same place, &c.
When the general connexion among all men is alone considered, their disposition to render services to one another is called good-will. This good-will is a favour, and the chance of obtaining this favour is a fictitious property, which is called honour or reputation. Reputation is therefore a species of wealth, a security for the obtaining those free and gratuitous services which depend upon good-will.
It appears, therefore, that if by any offence an individual becomes a sufferer, it must be in one or other of these four points—person, reputation, property, or condition.
Hence simple private offences may be subdivided into—
Offences against the person.
Offences against the reputation.
Offences against the property.
Offences against the condition.
Offences are called simple, when the individual is affected only in one of these points; complex, when he is affected in more than one at one time, as—
Offences against the person and property.
Offences against the person and reputation.
Offences against the Person.
As a man is composed of two different parts—his body and his mind, acts which exert a pernicious influence upon him, may operate upon him either immediately without affecting his will, or mediately through the intervention of that faculty. The constraint which may be produced by such acts may be either positive, compelling him to do what is disagreeable to him—or negative, preventing him from doing what is agreeable to him:—the evil resulting from them mortal or not; if it be not mortal, it will either be reparable or temporary, or irreparable or perpetual.—Again, the pain which a man experiences in his mind will either be a pain of actual sufferance, or a pain of apprehension. Hence we have nine genera or kinds of personal injuries, which, when ranged in the order most commodious for examination, will stand as follows:—
1. Simple corporal injuries, producing uneasiness or temporary suffering.
2. Irreparable corporal injuries—species, disfiguration, mutilation, deterioration of an organ as to its essential functions.
3. Simple mental injuries; that is, directly affecting the mind without affecting the body—or vexation.
4. Wrongful restraint or hindrance.
5. Wrongful constraint.
6. Wrongful banishment.
7. Wrongful confinement.
8. Wrongful imprisonment.
9. Wrongful homicide.
Offences against Reputation or Honour.
In point of reputation there is but one way of suffering, which is by losing a portion of the good-will of others. An individual may be a loser in this respect in either of two ways:—1. By the manner in which he behaves himself; and 2. By the manner in which others behave, or are thought to behave, towards him. To cause people to think that a man has been guilty of those acts which cause a man to possess less than he did before of the good-will of the community, is what may be styled defamation. When this is done by words, or by such actions as have no other effect than inasmuch as they stand in the place of words, the offence may be styled vilification. But this is not all: as a man may be made to lose the good-will of others, he may also be prevented from acquiring it, either by the interception of the honour which was his due, or by depriving him of the means of obtaining it. Hence we have four species of offences, viz.:—
2. Insulting language, or insulting gestures.
3. Usurpation of the reputation of another.
4. Prevention of the acquisition of deserved reputation.
Offences against the Person and Reputation.
Attacks upon the person and reputation may spring from different motives, and may have for their object either the immediate pleasure to be derived from sensual gratification, or that sort of reflected pleasure which in certain circumstances may be reaped from the suffering of another.
If the pleasure to be derived from sensual gratification be obtained by consent freely given, if not fairly obtained, the offence may be called seduction; if not freely, it may be called forcible seduction; if consent be altogether wanting, it is called rape. If neither of these offences have been consummated, the offence may be included under the denomination of simple lascivious injury.
When the person and reputation are attacked for the sake of that sort of pleasure which will sometimes result from the contemplation of another’s pain, the offence may consist either of actual corporal injury, and may be styled corporal insult, or it may come under the name of insulting menacement. Hence we have six generator kinds of offences under this head:—
1. Corporal insults.
2. Insulting menacement.
4. Forcible seduction.
6. Simple lascivious injuries.
Offences against Property.
Offences against property are so various, that it is extremely difficult to make an analytical table of them, which shall not itself form a large work. Besides, these offences have received in common use denominations which are so little determinate and uniform, that any definition given of them by a private individual can never be exact. It requires the aid of the legislature to fix their meaning.
Offences of this kind may affect either the right to property, or the enjoyment or exercise of that right.
Offences which affect the possession of property may relate either to an actual possession or to a future possession.
A contingent or future possession may be taken away by two kind of offences:—1. By the omission of an act necessary to be done before the party enters upon his right: this may be called non-investment, or non-collation of property. 2. By the commission of some act for the interception of your right—for taking it away, for example, in its transition from the actual possessor, to you the intended possessor; this may be called interception of property.
If the possession of an object of which the party is actually in possession be disturbed by the offence, the object of the offence may be his exclusion from the enjoyment of his property without substituting any other person. In this case, it is simply wrongful divestment or spoliation of property. It may be, that the object of the offence is, that the delinquent may obtain possession of the property himself: it is then usurpation of property. It may be, that he intends that it should pass to a third party: it is then wrongful attribution, or collation of property.
With respect to offences against property which only affect the enjoyment of the object in question; this object must be either a service, or a set of services, which should have been rendered by some person, or else an article belonging to the class of things. In the former case, the offence may be styled wrongful withholdment of services. In the latter case, when any object of which any individual has had the enjoyment, ceases so to be enjoyed, it may be either from a change in the intrinsic condition of the thing itself, or in its exterior situation with respect to such individual, which has removed it out of his reach. If the change in the nature of the object be such that no further use can be made of it, it is destroyed; if the change have only diminished its value, it is damaged. If it be simply removed beyond his reach without alteration, it is wrongfully detained.
The object detained may have been obtained from the proprietor, with or without his consent. In the first case, its detention is the non-payment of a debt. In the second case, if the detaining party, knowing that he has no right, intend to detain it always, and, at the same time, not to be amenable to the law, such detention is commonly called theft. If he have employed force or threats against the proprietor or other persons who would have prevented his wrongful occupation of the property, in this case the offence takes the name of robbery. If the consent of the proprietor have been obtained, but if he have been deceived by false appearances, it is an act of sharping or fraud. If such consent be obtained by the fear of evil resulting from an abuse of power, it is what is commonly called extortion.
The foregoing analysis, though imperfect, will suffice to explain the principal genera of offences contained in the fourth and fifth order.
Offences against the Person and Property.
If constraint be applied to the person of the proprietor in the commission of one of the foregoing offences against property, there results from it the following complex offences:—
Offences against Condition.
A man’s condition in life is constituted by the legal relation he bears to the persons who are about him; that is, by duties, which by being imposed on the one side, give birth to rights or powers on the other. These relations, it is evident, may be almost infinitely diversified. Some means, however, may be found of circumscribing the field within which the varieties of them are displayed. In the first place, they must either be such as are capable of displaying themselves within the circle of a private family, or such as require a larger space. The conditions constituted by the former sort of relations may be styled domestic; those constituted by the latter, civil.
Domestic conditions are founded upon natural relations, or upon relations purely legal.
In the institution of purely legal conditions, the party favoured may be styled a superior; and as both parties are members of the same family, a domestic superior, with reference to the party obliged; who in the same case may be styled a domestic inferior, with reference to the party favoured. These domestic conditions have generally been constituted by powers rather than rights.
If the power thus vested in the superior be a beneficial one, and for his own advantage, such superior is called a master, and the inferior is called a servant. If it be for the sake of the inferior, the superior is termed a guardian, and the inferior his ward.
The natural relations founded upon the cohabitation of men and women, and upon the fruits of their union, have served for a basis upon which to fix their legal relations; that is to say, the rights and obligations of the husband and wife, of the parent and child.
These rights and obligations are the same as in the preceding cases. The husband is in certain respects the guardian, and in other respects the master of his wife: the parent is in some respects the guardian, and in others the master of his children.
We come now to civil conditions. These it may well be imagined, may be infinitely various: to make a complete enumeration of them, would be to enumerate every possible mode by which powers and rights may be established; for to be subject to a certain power, or to possess a certain right, is what constitutes a civil condition.
This variety, or rather this infinity of conditions, may however be reduced to three classes:—1. Fiduciary charge; 2. Rank; 3. Profession.
A fiduciary charge takes place between two or more interested parties, when, one of the parties being invested with a power or a right, is bound, in the exercise of this power and this right, by certain rules, for the advantage of the other party. This relation constitutes two conditions—the trustee, and the trustor, called in lawyers’ language cestui que trust.
Rank is often combined with the circumstance of a fiducial trust, but there are certain cases in which it can be considered as altogether distinct. The rank of knighthood is constituted—how? By prohibiting all other persons from performing certain acts, the performance of which is the symbol of the order, at the same time that the knight in question and his companions are permitted to perform them;—for instance, to wear a ribbon of a certain colour, or in a certain manner—to call himself by a certain title—to use an armorial seal with a certain mark upon it. The law creates a benefit for these individuals, by subjecting all others to the negative duty of abstaining from these acts.
The condition of a professional man stands upon a narrower footing. To constitute this condition there needs nothing more than a permission given him on the part of the legislator to perform those acts, in the performance of which consists the exercise of his profession: to give or sell his advice or assistance in matters of law or of physic—to give or sell his services as employed in the executing or overseeing of a manufacture or piece of work of such or such a sort. The permission in the greater number of cases is not even expressly granted—the law merely does not prohibit, &c.; but there are cases in which the law, whilst it permits certain persons to follow certain trades, prohibits those who have not received the same permission. This is called in certain circumstances monopoly—in others, privileged profession.
By forbearing to subject you to certain disadvantages to which it subjects an alien, the law confers upon you the condition of natural subject—by subjecting him to them, it imposes upon him the condition of an alien. By conferring on you certain privileges or rights which it denies to a roturier, the law confers on you the condition of a gentilhomme—by forbearing to confer on him these privileges, it imposes on him the condition of a roturier.*
This analysis, which is only a sketch of the subject, may serve to explain what is a condition, and what offences may be committed against a condition. In order fully to analyze all these offences, it would be necessary to take each condition separately, to enumerate all its benefits, or all the charges of which it is composed, and to show every method by which it is possible to avoid those charges, or to be deprived of those benefits. But this process would lead to a great number of repetitions, for the avoidance of which it will be more advisable to exhibit the different kinds of offences which are common to all conditions, and afterwards the incidental offences peculiar to certain conditions.
Subdivision of Self-regarding Offences.
Self-regarding offences are, properly speaking, errors, or acts of imprudence. We have already seen, in examining the limits which separate morals and legislation, that there are strong reasons for not treating these offences in the same manner as offences of the other classes. To subject them to punishment, would be for the laws themselves to cause a greater evil than those which they would pretend to prevent.
It is, however, useful to class these offences:—1. To show in general what are the offences which ought not to be subject to the severity of the laws; 2. That those offences may be discovered with respect to which exception should be made for particular reasons.
The subdivision of these offences is exactly the same with that of private offences. The evil which we may experience from others, we may produce for ourselves.
Genera of Personal or Self-regarding Offences.
Offences against the Person.
Offences against Reputation.
1. Indiscreet imprudent confessions.
2. Invectives against one’s self.
3. Neglect of reputation.
Offences against Reputation and Person.
1. Loss of virginity before marriage.
2. Indecent practices in sight of another.
Offences against Property.
1. Waste of his own property.
2. Neglect of the means of acquisition.
3. Prodigality, Ex. gaming.
4. Burthensome acquisition.
5. Imprudent agreement.
Offences against Person and Property.
1. Mutilation which prevents the exercise of a profitable trade.
2. Diseases brought on by intemperance or excess, and which are productive of expense and loss.
Offences against Condition.
1. Investment with a condition injurious to one’s self;—improvident marriage.
2. Divestment of a condition beneficial to one’s self;—rash divorce.
Subdivision of Semi-public Offences.
It is neither an evil which is past, nor one which is present, which can constitute a semi-public offence. If the evil were present or past, the individuals who had suffered, or were suffering from it, would be assignable: it would become a private offence. What, then, is the evil which constitutes a semi-public offence? It is a future evil; that is to say, an evil not yet realized, but which is probable, and takes the name of danger.
This danger may threaten all the points in which an individual can suffer. Hence the subdivision of offences of this class must be the same with that of private offences.
Semi-public Offences against the Person.
Offences against Reputation.
Offences against Person and Reputation.
There are no offences corresponding with this order in this class.
Offences against Property.
The same denominations as for private offences. An offence is semi-public—1. When the thing, or the service which it affects, belongs in common to societies of individuals, or to the officers of an entire class; 2. When the number of persons hurt, or exposed so to be, is too great for the individual to be held liable to render a separate account to each one; as in the case of a fraudulent lottery, false reports affecting the public funds, &c.
Offences against Person and Property.
List of physical calamities—
1. Collapsion or fall of large masses of solid matter, such as decayed buildings, rocks, masses of snow, and mines.
8. Pestilential winds.
9. Contagious maladies.
10. Famine and other species of dearth.
11. Evils produced by destructive animals, beasts of prey, locusts, ants, insects, &c.
12. Evils produced by children, maniacs, idiots, &c.
An individual may be guilty of an offence of this kind—1. In as far as any imprudent act of his may contribute to give birth to any of these calamities, as by breaking quarantine, by importing merchandise from infected places, &c. 2. In as far as he may fail to do what he ought to do towards preventing them, such failure may be an offence.
N.B. These calamities do not always fall upon the person and property, so that these offences do not exactly correspond with those of the fifth order; but this is most frequently the case.
Offences against Condition.
Offences against the matrimonial condition: Ex. Attacking the validity of marriage among persons of a certain class or religious sect, as Protestants, &c.
Offences against the parental or filial condition: Ex. Attacking the legitimacy of children born in a certain class, as Protestants, &c.
Offences against civil conditions are all in one sense semi-public, inasmuch as the possession of a certain condition belongs to a certain class.
Subdivision of Public Offences.
The offences by which the public interest may be affected, are of very various and complex kinds. The following subdivision is incomplete, but an attempt to make it complete, by following out the exhaustive method, would have been too wearisome. Upon the present occasion, one of the great difficulties presented by the subject arises from the fact, that many offences of this class have not yet received names, and that a recurrence to long and obscure periphrases would therefore be rendered necessary.
The science of legislation being extremely imperfect, the nomenclature cannot be good; and with a bad nomenclature, it is not possible to make a good distribution.
Offences against External Security.
Such offences as have a tendency to expose the nation to the attacks of a foreign enemy:
1. Treason, either negative or positive, in favour of foreign enemies.
2. Espionage in favour of foreign rivals, not yet enemies.
3. Injuries to foreigners at large, including piracy.
4. Injuries to privileged foreigners, such as ambassadors.
Offences against Justice.
The direct object of the tribunals ought to be to maintain the laws, that is to say to punish those offences which violate them.
Offences against justice are of two sorts—
I. Those which may be committed by the officers of justice in opposition to their duties.
II. Those which may be committed by other persons, in opposition to, or to mislead the tribunals.
1. Improper exercise of judicial office.
2. Abuse of judicial power.
3. Usurpation of judicial power.
4. Collusion, syn. corruption on the part of judicial officers.
5. Peculation by judicial officers.
6. Exaction, syn. extortion on the part of judicial officers.
7. Non-rendering of services due to judicial officers.
8. Non-denouncing of offences to judicial officers.
9. Disobedience to judicial orders.
11. Breach of banishment.
12. Prison breach.
13. False oaths, syn. perjury.
14. Rebellion against justice.
15. Disturbance of judicial powers.
16. Judicial vexation.
Offences against Police.
Police is in general a system of precaution, either for the prevention of crimes or of calamities. It is destined to prevent evils and provide benefits.
The acts which oppose the police, or which oppose the precautions which it institutes, form as many offences as there are kinds of precautions; but as their nature is varied according to times and circumstances, so must the particular enumeration of them be.
The business of police may be distributed into eight distinct branches:—
1. Police for the prevention of offences.
2. Police for the prevention of calamities.
3. Police for the prevention of endemic diseases.
4. Police of charity.
5. Police of interior communications.
6. Police of public amusements.
7. Police for recent intelligence and information.
8. Police for registration, for preserving the memory of different facts interesting to the public, such as births, marriages, deaths, population, number of houses, situation and qualities of different properties, contracts, offences, procedure, &c.
Offences against the Public Force.
Such offences as have a tendency to oppose or mislead the operations of the military force destined for the protection of the state either against its enemies from without or from within, which the government could not overcome without an armed force.
1. Offences affecting the titles and functions of military officers.
3. Offences affecting the several sorts of things appropriated to the purposes of war: such as arsenals, ammunition, military magazines, fortifications, dock-yards, ships of war, and so forth.
Offences against the National Wealth.
The national wealth is the total of the wealth of all the nation. Those acts which tend to diminish the wealth of individuals, tend to diminish the national wealth. But what are the specific offences—what are the actions of this kind, which ought to be prohibited? The science of political economy leads to the conclusion, that government ought only to interfere for the protection of individuals in the acquisition and enjoyment of property, and seldom to direct as to the manner of acquiring and enjoying; the greatest obstacles to the increase of national wealth having almost always been found in those laws which have sought to increase it.
The most conspicuous offences of this order are—
Offences against the Public Treasure.
Such acts as have a tendency to diminish the public revenue, by opposing its collection, or misdirecting the employment of the funds destined to the service of the state:—
1. Non-rendering of services.
2. Non-payment of taxes—smuggling.
3. Destruction of the goods of the community, roads, public buildings, &c.
The state, considered collectively, may have possessions, and consequently suffer in these possessions, in the same manner as an individual.
Offences against Population.
Such offences as tend to diminish the number of members in the community:—
3. Prevention of births.
The influence of these things upon population has at all times been nearly imperceptible; the amount of population having, in nearly all circumstances, been found to correspond with the means of subsistence.
Offences against the Sovereignty.
It is hardly possible to describe these offences, unless the constitution to which they refer have been previously laid down. There are many constitutions in which it is difficult to resolve the question, Where does sovereign power reside?
The following is the simplest idea which can be formed of it. The collective name of the government is commonly given to the total assemblage of persons charged with the different political functions. There is commonly in the state one person, or a body of persons, which assigns and distributes to the members of the government their departments, their functions, and their prerogatives—which exercises the legislative power—which directs and superintends the administrative power. The person or the body which exercises this supreme power, is called the sovereign. Offences against the sovereignty are those which tend to oppose or mislead the operations of the sovereign, those things which cannot be done without opposing or misleading the operations of the different parts of the government.
1. Rebellion, offensive or defensive.
2. Political defamation—political libels.
3. Conspiracy against the person of the sovereign, or the form of government.
Offences against Religion.
For combating every species of crime which can be committed by man, the state has only two great instruments—rewards and punishments:—punishments applicable everywhere, and on all ordinary occasions—rewards necessarily reserved to a small number of extraordinary occasions. The distribution of rewards and punishments is often opposed or misdirected, or rendered useless, because the state has neither eyes which can see everything, nor hands which can attend to everything. Religion is calculated to supply this deficiency of human power, by inculcating upon the minds of men the belief that there is a power engaged in supporting the same ends, which is not subject to the same imperfections. It represents the Supreme Invisible Being as disposed to maintain the laws of society, and to reward and punish according to infallible rules, those actions which man has not the means of rewarding and punishing. Everything which serves to preserve and strengthen in the minds of men this fear of the Supreme Judge, may be comprehended under the general name of Religion; and for the purpose of clearness of discourse, we may often speak of religion as if it were a distinct being, an allegorical personage, to whom certain functions are attributed. Hence, to diminish or pervert the influence of Religion, is to diminish or pervert, in the same proportion, the services which the state might derive from it, for the repression of crime or the encouragement of virtue. Everything which tends to weaken or mislead the operations of this power, is an offence against Religion.*
Offences which tend to weaken the force of the religious sanction are—
3. Profanations—syn. actions directed against any object of religious worship.
Offences which tend to pervert the employment of the religious sanction, may be comprehended under the name of caco-theism, and are divisible into three branches:—
1. Pernicious dogmas: dogmas attributing to the divinity dispositions opposed to the public welfare; for example, that he has created sources of suffering in greater abundance than sources of pleasure: dogmas imposing misseated, excessive, or useless punishments: suborning dogmas, which grant pardon where punishment has been deserved, and which offer rewards for actions which deserve none, &c.
2. Frivolous dogmas: dogmas which respect belief alone, and from which no moral good is derivable, and from which many ill effects result between those who admit and those who reject them.
3. Absurd dogmas: another means of attributing malevolence to the divinity, making him the author of an obscure and unintelligible system of religion.
Caco-theism has been productive of atrocious crimes. It has degraded the populace, persecuted the wise, and filled the minds of men with vain terrors; has forbidden the most innocent pleasures, and is the most dangerous enemy of correct morals and legislation. Punishments directed against the propagators of these errors would be well deserved, for the evil which results from these errors is real: but such punishments would be inefficacious, superfluous, and ill-adapted. There is but one antidote to these poisons—that is, truth. These dogmas, once exposed as false, cease to be pernicious, and are only ridiculous. The opinion which supports them ought to be attacked like every other opinion. It is not the sword which destroys errors, but the liberty of examining them. Persecution for opinion’s sake exhibits the monstrous union of folly and tyranny.
The same things must be admitted with respect to atheism, though atheism may be an evil in comparison with a system of religion conformable to the principle of utility, consoling the unhappy, and propitious to virtue. Yet it is not necessary to punish atheism: the moral sanction is sufficient for its condemnation. An opinion only is here stated, but the proofs of that opinion will be produced elsewhere.
ADVANTAGES OF THIS CLASSIFICATION.
Omitting others of minor importance, the following appear to be the principal advantages of this classification:—
1. It is the most natural, that is to say, the most easy to be understood and remembered. In what does a natural classification consist? In reference to a given individual, it is that which first presents itself to his mind, and which he comprehends with the greatest facility. Hence, when an individual invents a classification for himself, it appears, and is, in respect to himself, the most natural one. But with reference to men in general, the most natural classification is that which presents objects to them according to their most striking and interesting qualities. Now there is nothing more interesting or striking to a sensible being, than human actions considered in reference to the mischief which may result from them to himself or others.
2. This classification is simple and uniform, notwithstanding the multiplicity of its parts, because they are all analogous, one following the other, allowing the bonds which connect them, and their points of contact and resemblance, to be perceived at the first glance.
To know the first class, is to know the second and the third. The fourth rests upon the same foundation, though the points of connexion are less apparent than in the others. If the offences of the first three classes were not mischievous, those of the last would not be so either.
3. This classification is best adapted for discourse; best adapted for announcing the truths connected with the subject.
In every species of knowledge, disorder in language is at once the effect and the cause of ignorance and error. Nomenclature can only be perfected in proportion as truth is discovered. It is impossible to speak correctly, unless we think correctly; and it is impossible to think correctly, whilst words are employed for registering our ideas, which words are so constituted that it is not possible to form them into propositions which shall not be false.*
4. This classification is complete. There is no imaginable law to which it is not possible by its means to assign its proper place. If this law be directed against an action mischievous in any kind of manner whatsoever: if it be a capricious law—a mischievous law, it will also have its place, but it will be among acts which are mischievous—it will be itself classed among offences.
5. It displays intention. It is so contrived that the very place which any offence is made to occupy, suggests the reason of its being put there. It serves to indicate not only that such and such acts are made offences, but why they ought to be so. By this means, while it addresses itself to the understanding, it recommends itself in some measure to the affections. By the intimation it gives of the nature and tendency of each obnoxious act, it accounts for, and in some measure vindicates the treatment which it may be thought proper to bestow upon that act in a way of punishment. To the subject, then, it is a kind of perpetual apology, showing the necessity of every defalcation, which, for the security and prosperity of each individual, it is requisite to make from the liberty of every other. To the legislator, it is a kind of perpetual lesson, serving at once as a corrective of his prejudices, and as a check upon his passions. Is there a mischief which has escaped him?—in a natural arrangement, if at the sametime an exhaustive one, he cannot fail to find it. Is he ever tempted to force innocence within the pale of guilt?—the difficulty of finding a place for it, advertises him of his error. An imaginary crime cannot escape among a crowd—it cannot be classed under such a methodical arrangement. Such are the uses of a map of universal delinquency laid down upon the principle of utility;—such the advantages which the legislator as well as the subject may derive from it. Abide by it, and everything which is arbitrary in legislation vanishes. An evil-intentioned or prejudiced legislator durst not look it in the face. He would proscribe it, and with reason: it would be a satire upon his laws.
6. This classification is universal. Governed as it is by a principle which is recognised by all men, it will serve alike for the jurisprudence of all nations. In a system of law framed in pursuance of such a method, the language would serve as a glossary, by which all systems of positive law might be explained, while the matter would serve as a standard by which they might be tried. Thus illustrated, the practice of every nation might be a lesson to every other, and mankind might carry on a mutual intercourse of experiences and improvements as easily in this, as in every other walk of science.
It might thus possess a utility independent of the use which might be made of it by the governments of the world. If the different penal laws in the world were arranged according to this method, all their imperfections would become visible: without argument respecting them, they would be discovered by inspection. Here would be offences omitted, there imaginary offences; here redundant laws containing numerous descriptions of different kinds of theft, or personal offences, &c. instead of one general law. This classification would therefore prove, in legislative science, what instruments of comparison, such as the barometer and thermometer, have been found in physical science.
I must, however, recur to the principal advantage of this classification. Under it all offences of the same class are ranged under the same head, in virtue of some common quality which unites and characterizes them. Offences which compose one class have therefore among them like properties; and they have, at the same time, properties differing from those of offences of a different class. It hence results, that it is possible to apply general propositions to each of such classes, which may serve as the characteristics of such classes.
A collection of these characters it may here be proper to exhibit. The greater number of them we can bring together, the more clearly and fully will the nature of the several classes, and of the offences of which they are composed, be understood.
Characters of Class 1—composed of private offences, or offences against assignable individuals:—
1. When arrived at their last stage (the stage of consummation) they produce, all of them, a mischief of the first as well as of the second order.
2. The individuals whom they affect in the first instance,* are constantly assignable. This extends to all—to attempts and preparations, as well as to such offences as have arrived at the stage of consummation.
3. They will admit of compensation.
4. They admit† also of retaliation.
5. There is always some person who has a natural and peculiar interest to prosecute them.
6. The mischief they produce is obvious.
7. They are everywhere, and must ever be obnoxious to the censure of the world.
8. They are less apt than semi-public and public offences, to require different descriptions in different states and countries.
9. By certain circumstances of aggravation, they are liable to be transformed into semi-public, and by certain others, into public offences.
10. In slight cases compensation given to the individual affected by them, may be a sufficient ground for remitting punishment; for if the primary mischief has not been sufficient to produce any alarm, the whole of the mischief may be cured by compensation.
Characters of Class 2—consisting of self-regarding offences—offences against one’s self:—
1. In individual instances, it will often be questionable whether they are productive of any primary* mischief at all; secondary, they produce none.
2. They do not affect any other individuals assignable, or not assignable, except in as far as they affect the offender himself, unless by possibility in particular cases; and in a very slight and distant manner they affect the whole state.
3. They admit not, therefore, of compensation.
4. Nor of retaliation.
5. No person has naturally any peculiar interest to prosecute them, except in as far as, in virtue of some connexion he may have with the offender, either in point of sympathy or interest, a mischief of the derivative kind may happen to devolve upon him.
6. The mischief they produce is apt to be unobvious, and in general more questionable than that of any of the other classes.
7. They are, however, apt many of them to be more obnoxious to the censure of the world than public offences, owing to the influence of the two false principles of ascetism and antipathy.
8. They are less apt than offences of any other class, to require different descriptions in different states and countries.
9. Among the inducements to punish them, antipathy against the offender is apt to have a greater share than sympathy for the public.
10. The best plea for punishing them is founded on a faint probability there may be, of their being productive of a mischief, which, if real, will place them in the class of public offences, chiefly in those divisions which are composed of offences against population, and offences against the national wealth.
Characters of Class 3—composed of semi-public offences, or offences affecting a whole subordinate class of persons:—
1. As such, they produce no primary mischief. The mischief they produce, consists of one or other or both branches of the secondary mischief produced by offences against individuals, without the primary.
2. The persons whom they affect in the first instance, are not individually assignable.
3. Offences of this class are apt, however, to involve or terminate in some primary mischief of the first order, which, when they do, they advance into the first class, and become private offences.
4. They admit not of compensation.
5. Nor of retaliation.
6. There is never any one particular individual whose exclusive interest it is to prosecute them. A circle of persons may however always be marked out, within which may be found some who have greater interest to prosecute, than any who are out of that circle have.
7. The mischief they produce is in general pretty obvious, but less so than that of private offences.
8. They are rather less obnoxious to the censure of the world than private offences.
9. They are more apt than private and self-regarding offences, to require different descriptions in different countries, but less so than public ones.
10. There may be ground for punishing them before they have been proved to have occasioned, or to be about to occasion mischief to any particular individual. The extent of the evil makes up for the uncertainty of it.
11. In no cases can satisfaction given to any particular individual affected by them, be a sufficient ground for remitting punishment; for by such satisfaction, it is but a part of the mischief of them that is cured.
Characters of Class 4—consisting of public offences, or offences against the state in general:—
1. As such, they produce not any primary mischief; and the secondary mischief they produce, which consists frequently of danger without alarm, though great in value, is in specie very indeterminate.
2. The individuals whom they affect in the first instance are constantly unassignable, except in so far as by accident they happen to involve or terminate in offences against individuals.
3. They admit not of compensation.
4. Nor of retaliation.
5. Nor is there any person who has naturally any particular interest to prosecute them, except in as far as they appear to affect the power, or in some other manner the private interest of some person in authority.
6. The mischief they produce is comparatively unobvious.
7. They are comparatively little obnoxious to the censure of the world.
8. They are more apt than any of the other classes to admit of different descriptions in different states and countries.
9. They are constituted in many cases by some circumstances of aggravation, superadded to a private offence. They are, however, even in such cases, properly ranked as public offences, inasmuch as the mischief they produce, in virtue of the properties which aggregate them to that class, eclipses and swallows up those which they produce in virtue of those properties which aggregate them to the first class.
10 and 11. These characters are the same as in the case of semi-public offences.
[* ]Assignable, that is either by name, or at least by description, in such manner as to be sufficiently distinguished from all others; for instance, by the circumstance of being the owner or occupier of such and such goods.
[* ]With regard to offences against a class or neighbourhood, it is evident that the fewer the individuals are of which such class is composed, and the narrower that neighbourhood is, the more likely are the persons to whom an offence is detrimental to become assignable, insomuch that, in some cases, it may be difficult to determine concerning a given offence whether it be an offence against individuals or against a class or neighbourhood. It is evident also, that the larger the class or neighbourhood is, the more it approaches to a coincidence with the great body of the state. The three classes, therefore, are liable in a certain degree to run into one another, and be confounded. But this is no more than what is the case, more or less, with all those ideal compartments, under which men are wont to distribute objects for the convenience of discourse.
[* ]The conditions themselves having nothing that corresponds to them in England, it was necessary to make use of the foreign terms.
[* ]To prevent objections, I remark here, that religion is here only considered as an object of political utility, and not with reference to its truth; whilst as to the effects of religion in preparing us for a better life, or giving us an assurance of its possession,—these are points from which the legislator can draw no assistance.
[* ]When a nomenclature has been formed respecting a collection of things before their nature is known, it is impossible to draw from it any general propositions which will be true. Take oils, for example: under the same name of oils have been comprehended oil of olives and oil of almonds, sulphuric acid and carbonate of potass.—What true propositions can be deduced respecting the delicta privata and the delicta publica, the delicta publica ordinaria and the delicta publica extraordinaria, established by Heineccius in explaining the Roman laws? What can be deduced from the felonies, the præmunires, the misdemeanours of the English laws?—from the penal cases, the civil cases, the private and the public offences of all laws? These are objects composed of such disproportionate parts, of words referring to such heterogenous things, that it is impossible to form respecting them any general proposition.
[* ]That is, their primary mischief.
[† ]Admit. J I mean, that retaliation is capable of being applied to the cases in question, not that it ought always to be employed. Nor is it capable of being applied in every individual instance of each offence, but only of some individual instance of each species of offence.
[* ]Because the person who in general is most likely to be sensible of the mischief (if there be any) in the offence, viz. the person whom it most affects, shows by his conduct that he is not sensible of it.